Information Note on the Court’s case-law

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Information Note

on the Court’s case-law

No. 164 June 2013

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on the Court. In the provisional version the summaries are normally drafted in the language of the case concerned, whereas the final single-language version appears in English and French respectively. The Information Note may be downloaded at <http://www.

echr.coe.int/Pages/home.aspx?p=echrpublications/other&c=>. A hard-copy subscription is available for 30 euros (EUR) or 45 United States dollars (USD) per year, including an index, by contacting the publications service via the on-line form at <http://

appform.echr.coe.int/echrrequest/request.aspx?lang=gb>.

The HUDOC database is available free-of-charge through the Court’s Internet site (<http://hudoc.echr.coe.int/sites/eng/>).

It provides access to the case-law of the European Court of Human Rights (Grand Chamber, Chamber and Committee judgments, decisions, communicated cases, advisory opinions and legal summaries from the Case-Law Information Note), the European Commission of Human Rights (decisions and reports) and the Committee of Ministers (resolutions).

European Court of Human Rights (Council of Europe)

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Tel: 00 33 (0)3 88 41 20 18 Fax: 00 33 (0)3 88 41 27 30

publishing@echr.coe.int www.echr.coe.int

ISSN 1996-1545

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3 aRTIcle 1

Jurisdiction of states

Territorial jurisdiction in relation to detention of Iraqi national by coalition of armed forces in Iraq:

relinquishment in favour of the Grand Chamber

Hassan v. the United Kingdom - 29750/09 ... 7

aRTIcle 2

Positive obligations life

Authorities’ failure to protect life of a detainee who disappeared in life-threatening circumstances:

violation

Turluyeva v. Russia - 63638/09 ... 7 Positive obligations

life

effective investigation

Failure to take appropriate measures to protect lives of residents of children’s home or to conduct effective investigation into deaths caused by conditions there: violation

Nencheva and Others v. Bulgaria - 48609/06 ... 8 effective investigation

Failure to establish the responsibility of the administrative authorities for the death of a thirteen-year old boy in a public place: violation

Banel v. Lithuania - 14326/11 ... 10 Effectiveness of investigation into death impaired on account of lack of independence of court upholding a decision to discontinue the proceedings: violation

Mustafa Tunç and Fecire Tunç v. Turkey - 24014/05 ... 10

aRTIcle 3

Inhuman treatment

Conditions of storage of the bodies of the applicants’ deceased relatives: no violation

Sabanchiyeva and Others v. Russia - 38450/05 ... 11 Degrading treatment

Lack of independent access to prison facilities for paraplegic prisoner; lack of organised assistance with his mobility and daily routine: violation

Grimailovs v. Latvia - 6087/03 ... 12 expulsion

Proposed transfer of Sudanese asylum-seeker from Austria to Hungary under the Dublin II Regulation:

transfer would not constitute a violation

Mohammed v. Austria - 2283/12 ... 12 Proposed deportation of Christian family to Iraq: deportation would not constitute a violation

M.Y.H. and Others v. Sweden - 50859/10 ... 14

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aRTIcle 5 article 5 § 3

brought promptly before judge or other officer

48 hours’ police custody following 18 days’ deprivation of liberty on board vessel arrested on high seas:

violation

Vassis and Others v. France - 62736/09 ... 15

aRTIcle 6 article 6 § 1 (civil) access to court

Decision of Netherlands courts to decline jurisdiction to hear claim against the UN arising out of the Srebrenica massacre: inadmissible

Stichting Mothers of Srebrenica and Others v. the Netherlands (dec.) - 65542/12 ... 15 equality of arms

Communication of reporting judge’s draft decision to public rapporteur in proceedings before Conseil d’Etat: inadmissible

Marc-Antoine v. France (dec.) - 54984/09 ... 17 article 6 § 2

Presumption of innocence

Reasoning of civil courts based to decisive extent on comments made by prosecutor as to guilt when discontinuing criminal proceedings on technical grounds: violation

Teodor v. Romania - 46878/06 ... 17

aRTIcle 8

Positive obligations Respect for private life Respect for family life

Placement of child on account of mother’s financial situation and without taking into account subsequent change in circumstances: violation

R.M.S. v. Spain - 28775/12 ... 18 Respect for private life

Unjustified disclosure of confidential medical data relating to refusal by Jehovah’s Witnesses to undergo a blood transfusion: violation

Avilkina and Others v. Russia - 1585/09 ... 19 Taking and retention of DNA profiles of convicted criminals for use in possible future criminal proceedings: inadmissible

Peruzzo and Martens v. Germany (dec.) - 7841/08 and 57900/12 ... 20 Respect for private life

Respect for family life

Statutory ban on returning bodies of terrorists for burial: violation

Sabanchiyeva and Others v. Russia - 38450/05 ... 21

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5 Respect for family life

Order for return of child made pursuant to Brussels IIa Regulation without any examination of the merits in the requested State: inadmissible

Povse v. Austria (dec.) - 3890/11 ... 22 expulsion

Refusal to renew residence visa because of applicant’s debts and dependence on public funds: violation Hasanbasic v. Switzerland - 52166/09 ... 23

aRTIcle 10

freedom of expression

freedom to receive information

Refusal to allow a non-governmental organ isation access to intelligence information despite a binding decision directing disclosure: violation

Youth Initiative for Human Rights v. Serbia - 48135/06 ... 25

aRTIcle 11

freedom of peaceful assembly

Criminal conviction for organising illegal demonstration that ended in violence: violation

Gün and Others v. Turkey - 8029/07 ... 26

aRTIcle 34

Hinder the exercise of the right of petition

Prison administration’s refusal to pay postage for dispatch of prisoner’s letters to the European Court:

no violation

Yepishin v. Russia - 591/07 ... 27

aRTIcle 35 article 35 § 1

exhaustion of domestic remedies effective domestic remedy – bulgaria

Establishment in accordance with Court pilot judgment of domestic remedy affording compensation in length-of-proceedings cases and requiring exhaustion: inadmissible

Balakchiev and Others v. Bulgaria (dec.) - 65187/10

Valcheva and Abrashev v. Bulgaria (dec.) - 6194/11 and 34887/11 ... 27 exhaustion of domestic remedies

effective domestic remedy – Turkey

Non-exhaustion of a new accessible and effective constitutional remedy: inadmissible

Demiroğlu and Others v. Turkey (dec.) - 56125/10 ... 28

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aRTIcle 37 article 37 § 1 (c)

continued examination not justified

Careful examination of applicant’s case by domestic courts: struck out

K.A.S. v. the United Kingdom (dec.) - 38844/12 ... 29

aRTIcle 41 Just satisfaction

Direction that a Contracting State, not party to the proceedings, should not claim back compensation it had paid to applicant out of sum awarded against respondent State in respect of non-pecuniary damage

Trévalec v. Belgium (just satisfaction) - 30812/07 ... 30

aRTIcle 46

execution of a judgment

Respondent State granted seven-month extension of time to introduce domestic remedy in length- of-criminal-proceedings cases

Michelioudakis v. Greece - 54447/10 ... 30

aRTIcle 1 of PRoTocol no. 1 Possessions

Ban on donating embryos for scientific research: communicated

Parrillo v. Italy (dec.) - 46470/11 ... 30 Peaceful enjoyment of possessions

Forfeiture of applicant’s bail notwithstanding his acquittal: no violation

Lavrechov v. the Czech Republic - 57404/08 ... 31

RelInquIsHmenT In favouR of THe GRanD cHambeR ... 32

couRT news ... 32 Elections

Seminar

Recent developments in the areas of case-law information, judicial training and general outreach

RecenT PublIcaTIons ... 33 Information in Arabic

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7 Article 1 – Article 2

aRTIcle 1

Jurisdiction of states

Territorial jurisdiction in relation to detention of Iraqi national by coalition of armed forces in Iraq: relinquishment in favour of the Grand Chamber

Hassan v. the United Kingdom - 29750/09 [Section V]

Prior to the invasion of Iraq in March 2003 by a coalition of armed forces led by the United States of America, the applicant was a general manager in the national secretariat of the Ba’ath Party and a General in El Quds Army, the private army of the Ba’ath Party. He lived in Umm Qasr, a port city in the region of Basrah. In April 2003, after the British Army had entered into occupation of Basrah, they detained the applicant’s brother.

According to the applicant, this was done to force the applicant, who was wanted because of his Ba’ath Party connections, to surrender to custody.

The Government denied this, stating that it was a case of mistaken identity. The applicant’s brother was subsequently taken by United Kingdom forces to Camp Bucca, a detention facility operated by the United States, although parts were also used by the United Kingdom to detain and interrogate detainees. Following interrogation by both US and UK authorities, the applicant’s brother was deemed to be of no intelligence value and, according to the records, was released on or around 12 May 2003.

According to the applicant, the family had no further news of the applicant’s brother until his body was discovered some 700 kilometres away in early September 2003.

In 2007 the applicant brought proceedings in the English administrative court, but these were dismissed after the court found that Camp Bucca was a United States rather than a United Kingdom military establishment.

In his application to the European Court, the applicant alleges that his brother was arrested and detained by British forces in Iraq and was subsequently found dead in unexplained circumstances. He complains under Article 5 §§ 1, 2, 3 and 4 of the Convention that the arrest and detention were arbitrary and unlawful and lacking in procedural safeguards and under Articles 2, 3 and 5 that the United Kingdom authorities failed to carry out an investigation into the circumstances of the detention, ill-treatment and death.

(See also Al-Skeini and Others v. the United Kingdom [GC], 55721/07, and Al-Jedda v. the United Kingdom [GC], 27021/08, both delivered on 7 July 2011, Information Note 143)

aRTIcle 2

Positive obligations life

authorities’ failure to protect life of a detainee who disappeared in life-threatening

circumstances: violation

Turluyeva v. Russia - 63638/09 Judgment 20.6.2013 [Section I]

Facts – In October 2009 the applicant’s son was detained in Grozny by the police following an armed skirmish. He was last seen by his uncle at the police headquarters with signs of beatings on his face. The family have had no news of him since.

The applicant lodged a complaint, but it was not until some weeks later that proceedings were opened by a district investigative committee in Grozny on suspicion of murder and the proceedings were still pending at the date of the Court’s judgment.

Although the Government confirmed that the applicant’s son had been taken to the police headquarters they said that he had been released a few hours later. No records of the son’s detention, questioning or release were drawn up. According to the applicant, the boy’s uncle was harassed and threatened by the local head of police after she lodged her complaint.

Law – Article 2

(a) Presumption of and responsibility for the death of the applicant’s son – On the basis of the parties’

submissions and the documents before it, the Court found it sufficiently established that the applicant’s son had been taken by servicemen to the police headquarters in Grozny in the late evening of 21 October 2009. Although the police had alleged that he had subsequently been released, he had not been seen since and his family had not received any news. The criminal investigation had not acquired any evidence of his alleged release. In view of the passage of time and the life-threatening nature of such unrecorded detention in the region, the applicant’s son could now be presumed dead.

The State was responsible for his death, as the Government had failed to provide any plausible explanation of what had happened to him following

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his detention and disappearance more than three years previously.

Conclusion: violation (unanimously).

(b) Positive obligation to protect life – Given the Court’s numerous previous judgments and international reports on the subject, the Russian authorities had been sufficiently aware of the problem of enforced disappearances in the North Caucasus and its life-threatening implications for detained individuals. As the Government had informed the Council of Europe’s Committee of Ministers, in order to comply with the Court’s judgments, they had lately taken a number of specific actions to make investigations into this type of crime more efficient, in particular by creating a special unit within the Investigating Committee of the Chechen Republic.

The authorities had become aware no later than December 2009 that the applicant’s son had been unlawfully deprived of his liberty in a life-threatening situation. However, key measures which could have been expected in such circumstances had not been taken. In particular, there had been no im- mediate inspection of the police headquarters or efforts to collect perishable traces or video records from CCTV cameras. Such omissions were particularly regrettable given that the exact location of the suspected crime was known to the authorities.

The fact that the suspects were police officers did not relieve the investigating authorities of their obligations. In conclusion, by not acting rapidly and decisively, the authorities had failed to take appropriate measures to protect the applicant’s son’s life.

(c) Effectiveness of the investigation – The investigation had been plagued by numerous delays. In particular, the investigators had not taken statements from the police officers until months later, thus increasing the risk of collusion. The CCTV records at the police headquarters had been lost. Furthermore, the investigation had not had any impact on the police officers’ continued service and their ability to put pressure on other actors of the investigation, including witnesses. Of particular concern were the lack of police cooperation with the investigators and the allegations of threats to the uncle. In sum, the investigation had not been effective.

The Court further found a violation of Article 3, on account of the distress and anguish suffered by the applicant, a violation of Article 5 on account of the unacknowledged detention, and a violation

of Article 13 in conjunction with Article 2 on account of the lack of legal remedies.

Article 41: EUR 60,000 in respect of non-pecuniary damage.

(See also Aslakhanova and Others v. Russia, 2944/06 et al., 18 December 2012, Information Note 158) Positive obligations

life

failure to take appropriate measures to protect lives of residents of children’s home or to conduct effective investigation into deaths caused by conditions there: violation

Nencheva and Others v. Bulgaria - 48609/06 Judgment 18.6.2013 [Section IV]

Facts – The nine applicants are the parents of seven of the fifteen children and young adults under the age of twenty-two who died during the winter of 1996/97 in a home for children with severe mental disabilities in the village of Dzhurkovo. Before the Court, they alleged that the State had failed in its positive obligations to protect the lives of the persons in its care, in circumstances which created an im- min ent threat to their lives and well-being, and to conduct an investigation aimed at identify ing those responsible for the deaths.

Law – Article 2: It first had to be established what obligations arose for the respondent State out of the specific circumstances of the present case. All the children and young adults had been entrusted to the care of the State in a specialised public facility and had been under the exclusive supervision of the authorities on account of their particular vulnerability, among other factors. The applicants’ children had been subjected to ex tremely poor conditions: they had had insufficient quan- tities of food, medicines, clothes and bed linen and lived in rooms that were inadequately heated in the winter. Such conditions had inevitably posed a risk to the lives of vulnerable children suffering from illnesses requiring specific and intensive care.

From the month of September, that is, from the early autumn and some three months before the first death in the home, officials at the highest level in the Ministry of Employment and Social Policy and other State institutions had been alerted to the risk to the lives and well-being of the children in the Dzhurkovo home. Moreover, the manager had consistently drawn attention to the serious nature of the conditions and the difficulty of providing

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Article 2 9 the children with the necessary care, and had

appealed for help to numerous public and humani- tarian structures. The authorities at several levels had therefore had precise knowledge of the real danger to the well-being of the children in the home. Furthermore – and this was a crucial factor – the tragic events had not occurred in a sudden, one-off and unforeseen manner. There had been a series of deaths and the tragedy at the home had thus been spread over time. Fifteen children and young adults, seven of whom were the applicants’

children, had died between 15 December 1996 and 14 March 1997, that is, over a period of around three months. Hence, the present case concerned a situation in which the lives of vulnerable persons in the care of the State had been in danger and of which the authorities had been fully aware. Accordingly, the issue did not just affect the applicants’ individual situation but was a matter of public interest. The national authorities had therefore been under a duty to take the appropriate steps as a matter of urgency to protect the children’s lives, irrespective of their parents’ actions, and to furnish explanations as to the cause of the deaths and the persons who may have been responsible, by means of proceedings instituted of their own motion.

As to the authorities’ obligation to take protective action, numerous elements in the case file, namely the failure over a period of several months to respond to the manager’s warnings concerning conditions in the home and the apparent lack of prompt and appropriate medical assistance, indicated that the authorities had not taken swift, practical and sufficient measures to prevent the deaths, despite having precise knowledge of the real and imminent threat to the lives of the persons concerned. No official explanation had been provided in that regard.

With regard to the duty to institute an effective official investigation, civil proceedings enabling the applicants to claim and obtain individual compensation could not be deemed to be an adequate response in terms of Article 2 of the Convention such as to ensure that the deterrent effect of the judicial system in place and the significance of the role it was required to play in preventing violations of the right to life were not undermined. The facts of the case pointed to an exceptional situation rather than a routine case of negligence. Therefore, although it had been open to the applicants to establish the facts and obtain compensation, the fact that the taking of civil proceedings for compensation depended solely on the victims’ initiative meant that the remedy in question, regardless of

the outcome, could not be taken into consideration, since Article 2 imposed an obligation on the Bulgarian authorities in the instant case to conduct an investigation of their own motion.

As to the requirements of diligence and promptness, the official investigation had not commenced until more than two years after the events. Furthermore, the criminal proceedings had subsequently lasted for approximately eight years, including around six years for the preliminary investigation alone.

In particular, the prosecuting authorities did not appear to have been active between 2001 and April 2004. It was true that the investigation had been particularly complex. However, the unjustified failure to institute any kind of official proceedings for two years after the tragic events, allied to the length of the preliminary investigation, which had included a period of inactivity of almost four years, had been apt to compromise the effectiveness of the investigation despite the subsequent appearance of diligence on the part of the three judicial bodies concerned. Furthermore, the investigation had not succeeded in establishing the respective importance, as possible factors in the deaths, of each of the failings in the system for protecting the children, bearing in mind in particular their state of health and their natural life expectancy in the conditions in which they had been placed. The delays in the criminal proceedings had also made it impossible to ascertain whether the conduct of other persons responsible for the running of the home might have contributed to the tragic events. Accordingly, the authorities could not be said to have acted with reasonable diligence; this had prevented the swift establishment of the actual causes of the deaths and of a possible link between those causes and the conduct of the various officials responsible.

With regard to the scope of the investigation, the system appeared sufficient in theory to ensure protection of the right to life in the context examined. The Criminal Code made it a punishable offence to cause death through negligence or through a breach of a statutory duty of care in exercising a professional or other activity entailing risks and regulated by law. It was also an offence to knowingly decline to lend assistance to a vulnerable person in danger. The courts had established that the three employees of the children’s home who faced charges had done everything in their power to protect the lives of the children; the courts had stated clearly that the malfunctioning of the system had been attributable to the authorities which had failed to respond to the manager’s ap- peals. However, the courts had reached those conclusions in the context of proceedings confined

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to the charges against the three employees of the children’s home. Their findings had not resulted in action being taken to ascertain whether the failings in the system had stemmed from unlawful acts on the part of the representatives of the authorities for which the latter should have been called to account.

The investigation carried out had therefore failed to shed light on the circumstances surrounding the tragic events, to establish all the factors contributing to the deaths and to assess the relative importance of natural factors on the one hand and the failure of the system to furnish a prompt and suitable response to the danger posed to the lives and well- being of the children on the other hand. An analysis of that kind, carried out in a prompt and appropriate manner, would have made it possible to identify any individuals who may have been respon sible, so as to prevent a recurrence of such events in the future.

Article 41: EUR 10,000 to two of the applicants in respect of non-pecuniary damage; finding of a violation sufficient in respect of the non-pecuniary damage sustained by the remaining applicants.

failure to establish the responsibility of the administrative authorities for the death of a thirteen-year old boy in a public place:

violation

Banel v. Lithuania - 14326/11 Judgment 18.6.2013 [Section II]

Facts – In June 2005 the applicants’ thirteen-year old son died from injuries sustained when part of a balcony broke off from a building and fell on him while he was out playing. In September 2006 the applicant made a civil claim for non-pecuniary damage in criminal proceedings that had been instituted as a result of the accident. The prosecutor established that the city municipality had known since February 2005 that the building was in a poor state of repair and two municipal officials were indicted for failing to perform their duties. How- ever, because the municipality was undergoing administrative changes entailing a reallocation of the duties and responsibilities, it emerged that there was no one with specific responsibility for derelict and abandoned buildings and in May 2010, after the investigation had been discontinued and re-opened several times, the charges against the two officials were dropped. Following an appeal by the applicant, the regional court upheld the

decision to discontinue the criminal proceedings under the statute of limitations.

Law – Article 2: According to the Court’s case-law, the State’s obligation to protect the right to life must also involve the taking of reasonable measures to ensure the safety of individuals in public places and, in the event of serious injury or death, to require an effective and independent judicial system to be set up to secure legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim. Therefore, in cases involving non- intentional infringements of the right to life, the aforementioned positive obligations required States to adopt regulations for the protection of people’s safety in public spaces and to ensure the effective functioning of that regulatory framework. In that connection, the Court noted that the prosecutor had established that despite knowing the condition of the building the municipality had not complied with its legal duty to care for derelict buildings.

On-going administrative reform could not justify inaction on the part of the authorities.

Further, although the national authorities had promptly opened a criminal investigation, the investigating officers had not acted with due diligence when collecting evidence, and had ig- nored possibilities of identifying those accountable, for example by bringing charges against the man- agers concerned. In conclusion, the criminal investigation had not been thorough and the domestic authorities had failed to display due diligence in protecting the applicant’s son’s right to life. More- over, the legal system as a whole, faced with an arguable case of negligence causing death, had failed to provide an adequate and timely response consonant with Lithuania’s obligations under Article 2 of the Convention.

Article 41: EUR 20,000 in respect of non-pecuniary damage; EUR 8,135 in respect of pecuniary damage.

effectiveness of investigation into death impaired on account of lack of independence of court upholding a decision to discontinue the proceedings: violation

Mustafa Tunç and Fecire Tunç v. Turkey - 24014/05 Judgment 25.6.2013 [Section II]

Facts – In February 2004, while he was doing his military service, a sergeant was fatally injured by gunfire. A judicial investigation was opened as a

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11 Article 2 – Article 3

matter of course. In June 2004 the prosecutor discontinued the proceedings, finding that no third party could be held responsible for the sergeant’s death. In October 2004 a military tribunal of the air-force upheld an appeal by the applicants – the sergeant’s parents – and ordered the prosecutor to carry out a further investigation. In December 2004 the prosecutor closed the inquiries and sent the file back to the military tribunal, together with a report on the further investigation requested, presenting the measures taken and addressing the shortcomings identified by the tribunal. The military tribunal dismissed a further appeal by the applicants.

The applicants complained that the authorities had failed to carry out an effective investigation into their son’s death. They argued in particular that the legislation in force at the relevant time did not confer all the requisite guarantees of independence on the judicial authorities and, more specifically, on the military tribunal which had examined the case at last instance.

Law – Article 2

(a) Whether the investigation was prompt, appropriate and comprehensive – The inquiries in question had been carried out with the requisite diligence and the investigation had not been vitiated by any excessive delay. The authorities had taken appropriate measures to collect and preserve the evidence relating to the incident at issue. As regards the examination of witnesses, a number of statements had been taken immediately after the death. There was nothing to suggest that the authorities had failed to examine material witnesses or that the interviews had been conducted inappropriately.

(b) Whether the investigation was independent – The investigation had been carried out by the military prosecutor, assisted by detectives from the national gendarmerie. The decision to discontinue the proceedings after the inquiries had been subjected to the scrutiny of the air-force’s military tribunal, ruling on an appeal by the applicants. The Court referred to its previous finding in the Gürkan v. Turkey¹ judgment that, as composed at the material time, the military tribunal which had convicted the applicant in that case could not be regarded as independent and impartial within the meaning of Article 6 of the Convention, and that

1. Gürkan v. Turkey, 10987/10, 3 July 2012, Information Note 154.

there had been a violation of that Article. In so ruling, the Court had pointed to the fact that one of the three judges sitting on the bench of the military tribunal was an officer appointed by his hierarchy and subject to military discipline, and that he did not enjoy the same constitutional safeguards as the two other judges, who were professionals from the judiciary. Those considerations were also valid in the present case, in so far as the tribunal acting as the supervisory body in the investigation at issue had the same com- position. In that connection, it was to be noted that the doubts about impartiality in the present case concerned the judicial body responsible for the supervision at last instance of the investigation, and not simply the prosecutor’s office. It followed that the procedure could not meet the requirement of independence that was inherent in the national authorities’ obligation to carry out an effective investigation into the sergeant’s death.

(c) The participation in the investigation of the deceased’s family – The applicants had enjoyed access to the information emanating from the investigation to a sufficient degree to enable them to participate effectively in the proceedings.

In conclusion, notwithstanding its findings concerning the prompt, appropriate and comprehensive nature of the investigative measures and the effective participation of the applicants, the Court was of the view that there had been a violation of Article 2 under its procedural head, as the military tribunal did not have the requisite independence in its capacity as supervisory body, at last instance, in respect of the judicial investigation.

Conclusion: violation (four votes to three).

Article 41: EUR 10,000 jointly in respect of non- pecuniary damage.

aRTIcle 3

Inhuman treatment

conditions of storage of the bodies of the applicants’ deceased relatives: no violation

Sabanchiyeva and Others v. Russia - 38450/05 Judgment 6.6.2013 [Section I]

(See Article 8 below, page 21)

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Degrading treatment

lack of independent access to prison facilities for paraplegic prisoner; lack of organised assistance with his mobility and daily routine:

violation

Grimailovs v. Latvia - 6087/03 Judgment 25.6.2013 [Section IV]

Facts – In June 2002 the applicant, who had a metal insert in his spine after breaking his back two years earlier, was given a five and a half year prison sentence. In his application to the Court, he complained, inter alia, that the prison facilities were unsuitable for him as he was paraplegic and wheelchair-bound. In 2006 he was conditionally released.

Law – Article 3: The applicant had been detained for nearly two-and-a-half years in a regular detention facility which was not adapted for persons in a wheelchair. Although the Government had stated that the applicant had been placed in a special unit for inmates with health problems, the facilities did not appear to have had less architectural or technical barriers than the facilities in the ordinary wings of the prison. A ramp had been installed to facilitate wheelchair access to the outdoor yard, but other areas, such as the canteen, toilets, sauna, library, shop, gym, meeting room and telephone room had remained inaccessible. While the applicant had not been locked up in his cell during the day and could move around in the living area of his unit, his ability to use the facilities had been restricted by his paraplegia. He did not have access to a shower and his weekly visits to the sauna had not provided him an adequate opportunity to maintain his personal hygiene, given its inaccessibility and limited availability. Moreover, no measures had been adopted to alleviate the hardship caused by the inaccessibility of the sanitation facilities while meeting his wife for conjugal visits, which visits could under Latvian legislation last up to forty- eight hours. In exercising their wide margin of appreciation in deciding whether or not to allow conjugal visits, the States had to have due regard to the needs and resources of the community and of individuals. Placing the applicant in facilities where he could not properly wash and use the toilet, even if only for a limited period, could hardly be considered compatible with respect for his human dignity.

The applicant had had to rely on his fellow inmates to assist him with his daily routine and mobility around the prison, even though they had not been

trained and did not have the necessary qualifications.

Although the medical staff had visited the applicant in his cell for ordinary medical check-ups, they had not provided any assistance with his daily routine.

The State’s obligation to ensure adequate conditions of detention included making provision for the special needs of prisoners with physical disabilities and the State could not absolve itself from that obligation by shifting the responsibility to cellmates.

In the light of the foregoing considerations and their cumulative effects, the conditions of the applicant’s detention in view of his physical disa- bility and, in particular, his inability to have access to various prison facilities, including the sanitation facilities, independently and the lack of any organised assistance with his mobility around the prison or his daily routine, had reached the threshold of severity required to constitute degrading treatment.

The Court also found a violation of Article 3 on account of the lack of an effective investigation into the applicant’s allegations of police ill-treatment in September 2001.

(See also: Čuprakovs v. Latvia, 8543/04, 18 December 2012; Turzynski v. Poland (dec.), 61254/09, 17 April 2012; D.G. v. Poland, 45705/07, 12 February 2013; Todorov v. Bulgaria (dec.), 8321/11, 12 February 2013)

expulsion

Proposed transfer of sudanese asylum-seeker from austria to Hungary under the Dublin II Regulation: transfer would not constitute

a violation

Mohammed v. Austria - 2283/12 Judgment 6.6.2013 [Section I]

Facts – The applicant was a Sudanese national who arrived in Austria via Greece and Hungary in October 2010 and applied for asylum. His application was rejected in January 2011 under the European Union Dublin II Regulation (“Dublin Regulation”) and an order was made for his forced transfer to Hungary. In December 2011 the applicant lodged a second application for asylum (which had no suspensive effect) following adverse reports by the Office of the United Nations High Com- missioner for Refugees (UNHCR) on the conditions of asylum-seekers in Hungary and a recent

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Article 3 13 decision of the Austrian Asylum Court to grant

suspensive effect to an appeal in another case in view of the risks of a possible violation of the Convention that had been identified in those reports. The second application for asylum was still pending at the date of the Court’s judgment.

Law – Article 3: Reports published in 2011 and 2012 on Hungary as a country of asylum and in particular as regards transferees under the Dublin Regulation were alarming. The UNHCR had identified areas of deficiency relating in particular to (i) prolonged administrative detention of asylum- seekers and the conditions of their detention and (ii) the treatment of asylum applications by transferees.

The Court noted that there was seemingly a general practice of detaining asylum-seekers for a consider- able time, partly under conditions that fell short of international and EU standards, and with de- ficient review procedures. There were also reports of abuse of detained asylum-seekers by officials and of forced medication. Nevertheless, although the UNHCR had advised the Austrian authorities of these problems in a letter of 17 October 2011 and had issued a comprehensive report in April 2012, it had never issued a position paper requesting European Union Member States to refrain from transferring asylum-seekers to Hungary under the Dublin Regulation (as it had done with respect to Greece, see M.S.S. v. Belgium and Greece [GC], 30696/09, 21 January 2011, Information Note 137).

Furthermore, in a more recent note on the subject issued in December 2012, the UNHCR had ap- preci atively acknowledged the changes to the law planned by the Hungarian Government and made particular reference to the fact that transferees who applied for asylum immediately upon their arrival in Hungary would no longer be subject to detention. It had also remarked on the reported intention of the Hungarian authorities to introduce ad- ditional legal guarantees concerning detention and to ensure unhindered access to basic facilities.

Indeed, the number of detained asylum-seekers had declined significantly in 2012. The Court therefore concluded that the applicant would no longer be at a real and individual risk of proscribed treatment in respect of detention if transferred to Hungary.

As to the issue of sufficient access to asylum proceedings in Hungary and the risk of refoulement to a third country, the Court took particular note of reports that asylum-seekers transferred there under the Dublin Regulation had to reapply for asylum upon arrival and that such a renewed

application was treated as a second asylum application without suspensive effect. There was also a seemingly automatic process of handing out deport ation orders upon entry and thus a real risk of refoulement without the merits of the asylum claim being examined. However, the applicant had not substantiated any individual risk of being subjected to treatment contrary to Article 3 if he returned to Sudan and in any event, as the transferring State, Austria was not required to conduct an analysis of the underlying flight reasons, but only to establish whether another EU Member State had jurisdiction under the Dublin Regulation and to examine whether there were any general reasons or other obstacles that would require a stay of transfer. Lastly, it appeared that under the changes that had been made to Hungarian law and practice transferees now had sufficient access to and could await the outcome of asylum proceedings in Hungary, provided they applied for asylum immediately.

Conclusion: no violation in the event of transfer (unanimously).

Article 13 in conjunction with Article 3: The applicant had made two applications for asylum in Austria. At the time of the first application in 2010, he did not have an arguable claim under Article 3 of the Convention, since the criticism voiced with regard to the situation of asylum- seekers in Hungary was not widely known at that time. However, the order for the applicant’s transfer to Hungary was not scheduled to be enforced until almost a year after it was made, by which time the applicant had (in December 2011) lodged a second application for asylum based on the reports on the situation of asylum-seekers in Hungary that had come to light in the meantime. Under Austrian law, that second asylum application did not have suspensive effect. In the Court’s view, however, in view of the passage of time before it was lodged and the intervening change of circumstances, that second application could not prima facie be considered abusively repetitive or entirely manifestly ill-founded and its lack of suspensive effect meant that the applicant had been denied access to an effective remedy against the enforcement of the order for his forced transfer.

Article 41: finding of a violation constituted sufficient just satisfaction for any non-pecuniary damage; no claim made in respect of pecuniary damage.

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Proposed deportation of christian family to Iraq: deportation would not constitute a violation

M.Y.H. and Others v. Sweden - 50859/10 Judgment 27.6.2013 [Section V]

Facts – The applicants, who were Iraqi nationals, applied for asylum in Sweden after fleeing their country of origin because, as Christians living in a predominantly Muslim neighbourhood in Bagh- dad, they feared persecution. They stated that they had been subjected to threats and demands for money from masked men and that an attempt had been made to kidnap a member of their family when they had been unable to pay the sum de- manded. The Swedish Migration Board rejected their applications and that decision was upheld by the Migration Court on the grounds that the evidence did not suggest that there was an indi- vidualised threat against the applicants upon return.

Law – Article 3: While the international reports on Iraq attested to a continuing difficult situation, including indiscriminate and deadly attacks by violent groups, and discrimination and heavy- handed treatment by the authorities, it appeared that the overall situation was slowly improving.

Indeed, the applicants did not claim that, by itself, the general situation in Iraq precluded their return;

instead, it was that situation combined with the fact that they were Christians that put them at real risk of being subjected to prohibited treatment.

However, while noting that Christians formed a vulnerable minority that had been subjected to escalating and targeted attacks in the southern and central parts of Iraq, the Court noted that an internal relocation alternative was available in the Kurdistan Region. According to international sources this was a relatively safe area in which large numbers of Christians had found refuge and where their rights were generally considered to be respected.

The Court reiterated that as a precondition to relying on an internal flight or relocation alternative, certain guarantees had to be in place:

persons due to be expelled had to be able to travel to the area concerned, gain admittance and settle there, particularly if in the absence of such guarantees there was a possibility of their ending up in a part of the country of origin where there was a real risk of ill-treatment. As regards entry to the Kurdi- stan Region, difficulties that had been faced by some at the checkpoints did not seem to be relevant for Christians, who, it appeared, were given prefer- ential treatment. There was also evidence to suggest that

no-one was required to have a sponsor, whether for entry or for continued residence. While various sources had attested that people relocating to the Kurdistan Region could face difficulties, for instance, in finding proper jobs and housing, the evidence before the Court suggested that there were jobs available and that settlers had access to health care and to financial and other support from the UNHCR and local authorities. In any event, there was no indication that the general living conditions in the region for Christian settlers would be unreasonable or in any way amount to treatment prohibited by Article 3. Nor was there a real risk of their ending up in other parts of Iraq.

Relocation to the Kurdistan Region was thus a viable alternative for a Christian fearing persecution or ill-treatment in other parts of Iraq. Lastly, there was nothing in the applicants’ personal circumstances to indicate that they would be at risk in the Kurdistan Region, especially bearing in mind that the incidents to which they had been subjected had all occurred in Baghdad.

Conclusion: deportation would not constitute a violation (five votes to two).

(See also, on the question of internal flight alter- natives: Salah Sheekh v. the Netherlands, 1948/04, 11 January 2007, Information Note 93; Sufi and Elmi v. the United Kingdom, 8319/07, 28 June 2011, Information Note 142; and two judgments – D.N.M. v. Sweden, 28379/11, and S.A. v. Sweden, 66523/10, both delivered on the same day as the instant case of M.Y.H. and Others v. Sweden – in which the applicants alleged that they would be at risk of honour-related crimes if deported to Iraq.

In both cases, the Court found that although the evidence indicated that the applicants might not receive effective protection from the authorities, as honour killings were often committed with im- punity in Iraq, and although it was unclear whether relocation in the Kurdistan Region was a viable option for persons such as the applicants who were Sunni Muslims, it would nevertheless be possible, on the facts, for them to relocate elsewhere in Iraq where they would not be in danger of persecution from the families and clans who had threatened them. Lastly, for another case on the risk of honour- related crime in the country of destination, see N.

v. Sweden, 23505/09, 20 July 2010, Information Note 132)

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15 Article 5 § 3 – Article 6 § 1 (civil)

aRTIcle 5

article 5 § 3

brought promptly before judge or other officer

48 hours’ police custody following 18 days’

deprivation of liberty on board vessel arrested on high seas: violation

Vassis and Others v. France - 62736/09 Judgment 27.6.2013 [Section V]

Facts – The applicants were crew-members of a ship that was intercepted by the French Navy off the African coast on suspicion of transporting drugs.

The vessel was escorted to France, where it arrived eighteen days later. On the applicants’ arrival, a preliminary investigation was opened and they were taken into police custody. They were presented to a judge about forty-eight hours later.

Law – Article 5 § 3: The police custody had followed a period of eighteen days of deprivation of liberty within the meaning of Article 5 of the Convention, and the applicants had had to wait a further forty-eight hours to be brought for the first time before a “judge or other officer” as provided in Article 5 § 3 with its autonomous meaning. The circumstances of the case did not justify such a delay. The interception had been planned in ad- vance and the ship suspected of being used for international drug trafficking had been under close surveillance since January 2008. Moreover, there was no doubt that the eighteen days required for the applicants’ transfer had allowed their arrival on French soil to be prepared sufficiently. In view of the length of that period, without judicial supervision, there had been no justification for subsequently placing the applicants in police custody for the forty-eight hours in question; in addition, the existence of those specific circumstances made the promptness requirement of Article 5 § 3 even stricter than in the more usual situation where the deprivation of liberty started with the police custody itself. The applicants should thus have been brought, as soon as they arrived in France and without delay, before a “judge or other officer authorised by law to exercise judicial power”. The case-law allowing for the first appearance before a judge to take place after two or three days, without breaching the rule on promptness, did not mean that the authorities could freely dispose of such a

period in order to complete the prosecution case file.

Article 41: EUR 5,000 each in respect of non- pecuniary damage.

(See Medvedyev and Others v. France [GC], 3394/03, 29 March 2010, Information Note 128; and Rigopoulos v. Spain (dec.), 37388/97, 12 January 1999, Information Note 2)

aRTIcle 6

article 6 § 1 (civil) access to court

Decision of netherlands courts to decline jurisdiction to hear claim against the un arising out of the srebrenica massacre:

inadmissible

Stichting Mothers of Srebrenica and Others v. the Netherlands - 65542/12 Decision 11.6.2013 [Section III]

Facts – The applicants are a foundation established under Netherlands law to bring proceedings on behalf of relatives of victims of the 1995 Srebrenica massacre, and ten nationals of Bosnia and Herze- govina who are surviving relatives of people killed in the massacre. The massacre occurred during the 1992-95 war in Bosnia and Herzegovina, when the town of Srebrenica, which was part of a UN Security Council declared “safe area”, came under attack by the Bosnian Serb Army (VRS). More than 7,000 Bosnian Muslims died in the operation which an under-strength and under-equipped battalion of the UN Protection Force (UNPROFOR), made up of lightly-armed Netherlands soldiers, was unable to stop. In addition, despite a request from the battalion’s commander for air support, the UN made no decisive use of air power.

The applicants brought civil proceedings against the Netherlands State and the UN before a regional court in the Netherlands, but in July 2008 the court held that there was no obligation on the Netherlands Government under international law to enforce the prohibition of genocide through its civil law and that it had no jurisdiction to hear the claim against the UN. On 13 April 2012 the Netherlands Supreme Court confirmed that under the applicable provisions of the UN Charter and

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of the Convention on the Privileges and Immunities of the United Nations, the UN had far-reaching immunity and could not be summoned before the national courts of the countries that were parties to the latter Convention. The UN’s immunity was absolute and intended to ensure its functioning in complete independence. The main proceedings against the Netherlands State were resumed and were still pending at the date of the Court’s decision.

In their application to the European Court the applicants complained, inter alia, that the granting of immunity to the UN had violated their right of access to court, contrary to Article 6 of the Con- vention. They further complained that the Nether- lands Supreme Court had rejected in summary reasoning their request for a preliminary ruling to be sought from the Court of Justice of the European Union.

Law – Article 6 § 1

(a) Standing of the applicant foundation – Although set up for the purpose of promoting the interests of surviving relatives of victims of the Srebrenica massacre, the applicant association had not itself been affected by the matters complained of under Articles 6 and 13 and could not, therefore, claim to be a “victim” of a violation of those provisions for the purpose of Article 34.

Conclusion: inadmissible in respect of the applicant foundation (incompatible ratione personae).

(b) Immunity of the United Nations – The Court underlined that the scope of the case before it was limited to the question whether the remaining applicants’ right of access to a court under Article 6 had been violated by the Netherlands courts’

decisions. The attribution of responsibility for the Srebrenica massacre or its consequences did not fall within the scope of the application.

As to the nature of the immunity enjoyed by the UN, the Court noted that it was not its role to seek to define authoritatively the meaning of provisions of the UN Charter and other international instruments. It nevertheless had to examine whether there had been a plausible basis in those instruments for the matters complained of. Since operations established by UN Security Council Resolutions under Chapter VII of the UN Charter were funda- mental to the mission of the UN to secure international peace and security, the Convention could not be interpreted in a manner which would subject the acts and omissions of the Security Council to domestic jurisdiction without the accord of the UN. To bring such operations within the scope of domestic jurisdiction would mean to

allow individual States, through their courts, to interfere with the fulfilment of the key mission of the UN in this field, including with the effective conduct of its operations.

Concerning the applicants’ argument that, since their claim was based on an act of genocide for which they held the UN (and the Netherlands) accountable, the immunity protecting the UN should be lifted, the Court found that international law did not support the position that a civil claim should override immunity from suit for the sole reason that it was based on an allegation of a particularly grave violation of a norm of international law. The International Court of Justice (ICJ) had clearly stated this in respect of the sover- eign immunity of foreign States in its Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) judgment of 3 February 2012. In the Court’s opinion this also held true as regards the immunity enjoyed by the UN.

As regards the argument that there was no alternative jurisdiction competent to entertain the applicants’ claim against the UN, the Court agreed that no such alternative means existed either under Netherlands national law or under the law of the UN. However, it did not follow that in the absence of an alternative remedy the recognition of immunity in itself constituted a violation of the right of access to a court. The fact that the UN had so far not made available any modes of settlement of claims relating to the acts and omissions of UNPRO- FOR was not imputable to the Netherlands and the nature of the applicants’ claims did not require the Netherlands to step in.

Finally, the Court considered it more appropriate to examine the applicants’ complaint that the State of the Netherlands was seeking to impute responsibility for the failure to prevent the Srebrenica massacre entirely to the UN, thereby attempting to evade its accountability, under Article 6 rather than under Article 13. The Court could not find it established that the applicants’ claims against the Netherlands State – the proceedings in respect of which were still pending – would necessarily fail.

In conclusion, the granting of immunity to the UN had served a legitimate purpose and was not disproportionate.

Conclusion: inadmissible (manifestly ill-founded).

The Court also rejected as manifestly ill-founded the applicants’ complaint that the Supreme Court of the Netherlands had dismissed on summary reasoning their request for a preliminary ruling to be sought from the Court of Justice of the European

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17 Article 6 § 1 (civil) – Article 6 § 2

Union. Having already found that the UN enjoyed immunity from national jurisdiction under international law, the Supreme Court had been entitled to consider a request for a preliminary ruling redundant without going further into the matter.

equality of arms

communication of reporting judge’s draft decision to public rapporteur in proceedings before Conseil d’Etat: inadmissible

Marc-Antoine v. France - 54984/09 Decision 4.6.2013 [Section V]

Facts – The applicant complained that during the proceedings before the Conseil d’Etat, unlike the

“public rapporteur” (rapporteur public) at the Conseil d’Etat, he had not been given a copy of the draft decision of the reporting judge.

Law – Article 6 § 1: Firstly, the draft decision of the reporting judge, who was a member of the court responsible for examining the case, was not a document submitted by a party that might influence the court’s decision but rather an element produced within the court in the process of pre- paring the final decision. The adversarial principle enshrined in Article 6 § 1 of the Convention could not apply to an internal working document of that nature, which was confidential.

Concerning the fact that the document had been transmitted to the public rapporteur, the latter was a member of the Conseil d’Etat, just like his col- leagues on the bench, the only difference between them being the special duties temporarily vested in him. Furthermore, in carrying out his duty as public rapporteur, which consisted in publicly and independently giving his opinion on the questions raised by the different cases and how they might best be resolved, he made an analysis of the case file comparable to that made by the reporting judge. Irrespective of whether he shared the views of the reporting judge, the public rapporteur used that judge’s draft decision in determining the position he would publicly submit to the court.

Thus the conclusions of the public rapporteur, in so far as they relied on the analysis made by the reporting judge, were such as to enable the parties to appreciate the key elements of the case and the court’s assessment of them, thereby giving them an opportunity to reply before the judges reached their decision. Consequently, this procedural parti- cu larity, which gave the parties a glimpse of the

line of thought developed by the court, and an opportunity to make their final observations before the court reached its decision, did not adversely affect the fairness of the proceedings. In addition, the applicant had failed to show in what respect the public rapporteur might be considered as an adversary or a party to the proceedings, which he would have needed to do in order to be able to claim a breach of the equality of arms principle.

The third-party interveners – the Conseil d’Etat and Court of Cassation Bar and the National Bar Council, two organisations representative of the professionals responsible for defending people in the domestic courts, particularly the administrative courts – disagreed with the applicant’s submissions and supported the Government’s position. Wanting the present system to be maintained, and warning of the adverse effects its disappearance would have, they considered that it offered better guarantees to the parties, while helping to ensure the quality of administrative justice in France.

In any event, the transmission of the draft decision to the public rapporteur had by no means placed the applicant at any disadvantage, or been pre- judicial to the defence of his civil interests, which were the only interests in issue in these administrative proceedings.

(See also Kress v. France [GC], 39594/98, 7 June 2001, Information Note 31)

article 6 § 2

Presumption of innocence

Reasoning of civil courts based to decisive extent on comments made by prosecutor as to guilt when discontinuing criminal proceedings on technical grounds: violation

Teodor v. Romania - 46878/06 Judgment 4.6.2013 [Section III]

Facts – In 2001 the commercial company which employed the applicant as its executive director lodged a criminal complaint, accusing him of having issued forged documents to obtain the reimbursement of expenses. In 2003 it suspended his employment contract pending the outcome of those criminal proceedings. In 2005 the prosecutor’s office decided to discontinue the proceedings on the ground that the limitation period had expired.

At the same time, it concluded that the case file

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clearly indicated that the applicant had used forged documents to obtain the reimbursement of expenses and that his use of money advanced by the company other than for the intended purpose constituted the offences of falsification of documents and abuse of office. On the basis of the above conclusions, the employer lifted the suspension of the applicant’s employment contract but refused to pay his salary for the period he had been suspended, and then dismissed him. The applicant challenged those two decisions before the domestic courts, but without success.

Law – Article 6 § 2: The question was whether the civil courts had acted in such a way or used such language in their reasoning as to cast doubts on the applicant’s innocence and thus infringed the principle of the presumption of innocence. Although a mere reference to the content of a prosecutor’s decision to discontinue proceedings could not in itself suffice to conclude that the individual concerned was criminally responsible for the offence with which he had been charged, repetition without any qualification or reservation could leave room for doubt as to his innocence if other arguments were not added by the civil courts. In the instant case, the domestic courts quoted extensively from the prosecutor’s 2005 decision with regard to whether the applicant had committed the offences with which he was accused, without seeking to depart from that decision’s findings. Thy the applicant for failing to use the remedies set out in the Code of Criminal Procedure “to have his innocence established” or “have set aside the finding of guilt against him”. Yet those provisions pertained to the criminal sphere and clearly concerned a person’s criminal responsibility. In so doing, the civil courts, which had full jurisdiction, had not used their powers to establish the facts and the applicant’s possible disciplinary liability in terms corresponding exclusively to the civil sphere.

In addition, in the proceedings on the applicant’s dismissal, the civil courts had stressed the fact that expiry of the limitation period “did not mean that a guilty verdict was eliminated, but only prevented application of a criminal sanction”. Yet such a statement as to guilt could easily lead the reader to con clude that, had the limitation period not expired, the applicant would necessarily have been convicted of the charges against him. Thus, despite the civil courts’ references to the Labour Code, it remained the case that they had employed language which overstepped the bounds of the civil forum, thereby casting doubt on the applicant’s innocence.

In conclusion, the civil courts’ use of the prosecutor’s decision to close the criminal proceedings

against the applicant in order to dismiss his actions in respect of his employment relationship justified the extension of the scope of Article 6 § 2 to the two sets of civil proceedings. The civil courts’

decisive reliance on the decision to discontinue the criminal proceedings, and the terminology they used were incompatible with the presumption of innocence. The Government’s preliminary ob- jection ratione materiae was accordingly dismissed.

Conclusion: violation (five votes to two).

Article 41: EUR 3,500 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

aRTIcle 8

Positive obligations Respect for private life Respect for family life

Placement of child on account of mother’s financial situation and without taking into account subsequent change in circumstances:

violation

R.M.S. v. Spain - 28775/12 Judgment 18.6.2013 [Section III]

Facts – On 23 August 2005 the applicant’s daughter, aged three years and ten months at the time, was taken away from her mother at the request of a social worker after the applicant had visited the social services department seeking financial assistance because of her straitened circumstances. Two days later the competent provincial department issued a provisional decision declaring the child to have been abandoned. On 30 August 2005 the applicant was informed that the department had assumed guardianship of her daughter and that the latter had been placed in a children’s home. The applicant saw her daughter for the last time on 27 September 2005. In June 2006 administrative procedures were set in motion with a view to having the child placed with a foster family.

Law – Article 8: The decision to place the child in a home and the subsequent decisions to withdraw the applicant’s contact rights completely and per- man ently and to transfer the child to another home had all been taken on the basis of the social worker’s report dated October 2005. However, that report should have been followed swiftly by a detailed assessment of the child’s situation and her relationship with her parents, in accordance with the rules

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Article 8 19 in force. The Court was not persuaded by the

reasons considered by the administrative authorities and the domestic courts to provide ample justification for automatically issuing a guardianship order and declaring the child to have been abandoned, in particular the child’s allegedly serious condition, her supposed lack of emotional attach- ment to her mother and the claim that the latter’s violent conduct during contact visits was disrupting the child’s stability and development. The courts had not substantiated the reasons given. No consideration had been given to the fact that the child had been very young when she was separated from her mother, to the existing emotional bond between mother and child or to the length of time that had elapsed since their separation and the attendant consequences for both of them. The guardianship order had been made because of the applicant’s difficult financial situation at the time, without any account being taken of subsequent changes in her circumstances. The applicant had simply been faced with a shortage of funds, a situation which the national authorities could have helped remedy by means other than the complete break-up of the family, a measure of last resort to be applied only in the most serious cases. The role of the social welfare authorities was precisely to help persons in a precarious situation find ways of overcoming their difficulties. The courts had refused to take into account the change in the applicant’s financial circumstances which she had sought to invoke in order to appeal against the declaration that her daughter had been abandoned, confining themselves instead to upholding the declaration adopted by the administrative authorities.

The decision to place the child in care had been consistently opposed by the applicant with the support of the prosecutor responsible for minors.

However, the child’s placement in a foster family with a view to her adoption had been ordered in 2009 on the sole grounds of the lack of contact between the child and her mother over a period of several years, although the contact between them had ceased precisely as a result of the administrative and judicial decisions taken. Furthermore, the alternative proposal to entrust the child to the care of her great-uncle had been rejected without reasons being given. The Court considered that a care order should normally be regarded as a temporary measure, to be discontinued as soon as circumstances permitted, and that any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parent and the child. The applicant had been forced to prove that she was a good mother to her

child. When she had submitted evidence to that end, the competent courts had considered, without any supporting arguments, that it was insufficient to outweigh the opinion of the administrative authorities, which had in the meantime been upheld by a judicial decision.

The applicant’s vulnerability at the time her daughter was taken into care might have played an important role in understanding the situation of the child and her mother. The subsequent change in the applicant’s financial circumstances did not appear to have been taken into consideration by the judge in 2009. The follow-up report issued in 2011 by the child protection services had noted that, almost six years after being separated from the applicant, the child had settled well in her foster family, which met all her material and emotional needs. In that connection the length of time that had elapsed – the result of the administrative authorities’ inaction – coupled with the inaction of the domestic courts, which had not found to be unreasonable the grounds advanced by the authorities for depriving a mother of her daughter for financial reasons alone, had been a decisive factor in precluding any possibility of the applicant and her daughter being reunited as a family. Regard being had to these considerations and notwithstanding the respondent State’s margin of appreciation in the matter, the authorities had failed to make adequate and effective efforts to secure the applicant’s right to live with her child and had thereby breached her right to respect for her private and family life.

Respect for private life

unjustified disclosure of confidential medical data relating to refusal by Jehovah’s witnesses to undergo a blood transfusion: violation

Avilkina and Others v. Russia - 1585/09 Judgment 6.6.2013 [Section I]

Facts – Following several complaints against a religious organisation, in 2007 a St Petersburg Deputy City Prosecutor asked that all medical institutions report every refusal of a blood transfusion by Jehovah’s Witnesses. When the second applicant underwent chemotherapy in a public hospital following a non-blood management treatment plan, her doctors informed the prosecutor’s